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Case in Point

Getting Away with Perjury

If a witness lies, whose job is it to say so?

When a key prosecution witness lies on the stand during a murder trial, and the judge and the lawyers know it, who has the responsibility to tell the jury? Does it matter which lawyer does so and at what point in the trial? If prosecutors allow the lie to linger with jurors are they not violating Supreme Court precedent that requires them to report false testimony by government witnesses? If defense attorneys point out the lie on cross-examination have they cured the error the prosecutor has made by staying silent, or do jurors believe prosecutors more than they believe defense attorneys when it comes to attacking the credibility of witnesses?

A federal appeals court tried to answer those thorny questions on October 20th in a case that could soon find its way to the justices in Washington.

In Long v. Pfister, a five-member majority on the 7th U.S. Circuit Court of Appeals half-heartedly ruled in favor of prosecutors, and against Paysun Long, an Illinois man who has been convicted of murder twice following trials that were constitutionally suspect. Three judges on the appeals panel dissented, expressing disbelief that their colleagues would let prosecutors get away with a lie. Here’s a case that has generated less attention than it deserves for what it says about how fast and loose the law can be when it comes to the sanctity of sworn testimony.

The story begins on June 11, 2001, in a housing development in Peoria, Illinois. Lariec Sherman was shot to death, his final moments witnessed by scores of spectators who had gathered around his body before he was transported to a local hospital. Even though no physical evidence linked Paysun Long to the murder he quickly became a suspect because four witnesses identified him as the shooter. By the time of Long’s trial in December 2001, however, two of those witnesses had changed their stories and refused to incriminate Long. Undaunted, prosecutors used their testimony anyway, showing jurors old videotape of the statements they had made before they had recanted.

Prosecutors had big problems with the other two witnesses who testifIed in person at Long’s trial. One, a woman named Brooklyn Irby, first incriminated Long on the witness stand but then changed her story. She ultimately told jurors that she had, before the trial, told police and prosecutors that her story about Long being the shooter was a lie. It didn’t matter. Long was quickly convicted and sentenced to death. But both his death sentence and his conviction were overturned on appeal because of prosecutorial misconduct during closing arguments. Turns out the district attorney, a veteran prosecutor, had told jurors that two of the witnesses who had recanted their stories about Long had done so out of fear. That was a lie.

So Long was retried in January 2004 and the trial looked an awful lot like the first one. Prosecutors again trotted out the testimony of the four witnesses who initially had identified Long. And again the defense told jurors about the ways in which those witnesses had recanted. One of the four witnesses, the most damaging to the defense, told jurors that Long had shot Sherman from behind, firing at the victim as he rode a bicycle. Irby, too, testified at this second trial. She told this new group of jurors that Long was the shooter but her account of the crime differed from the other eyewitness.

During cross-examination by Long’s lawyer at this second trial, Irby denied repeatedly what she has testified to at Long’s first trial-- that she had told both police and prosecutors that her initial identification was a lie. Over and over again she was given the chance to tell the truth. Over and over again she stuck to the falsehood.

The prosecutor in this second trial, the same as at the first trial, did nothing to correct the record of Irby’s testimony; did not tell jurors at any point before they deliberated that the witness was lying about something that went directly to her credibility. Before closing arguments, Long’s attorney brought to the witness stand the prosecution’s own investigator who to his credit told jurors that Irby had, indeed, recanted her incriminating testimony during the first trial. For all the jury knew it was Irby’s word against the word of the investigator about whether she had perjured herself.

During closing argument, the prosecutor told jurors that when Irby “came in here and was under oath she told you what she saw.” That wasn’t true and the prosecutor who said so knew it. And then during their rebuttal closing argument, when they knew they were getting the last word before deliberations, prosecutors engaged in what the dissenting appeals judges portrayed as egregious misconduct.

The appeals court dissenters wrote that the prosecutor “went so far as to describe a letter Irby had written that was not even in evidence. The judge had to interrupt and told the jury to disregard the blatant attempt by the experienced lead prosecutor to put unadmitted hearsay in front of the jury but she got the jury’s attention. During deliberations, the jury asked to see the letter.” (The dissenters also accused the prosecutor of a "blatantly racist stunt" during closings, in which she compared the witnesses milling around the crime scene to the slaves in Gone with the Wind, replete with minstrel-show dialect.)

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Long was convicted, again, and sentenced to 51 years in prison.

Brooklyn Irby was not the first witness to lie under oath in a criminal trial, and she surely hasn’t been the last. 1959, in a case styled Napue v. Illinois, the U.S. Supreme Court unanimously concluded that the failure of prosecutors to correct the false testimony of a government witness deprived the defendant of his or her constitutional rights. Thirteen years later, the justices were more specific in a case styled Giglio v. United States. Again, unanimously, they concluded that prosecutors had a duty to disclose to jurors an immunity deal they had made to secure the testimony of a key state witness.

Given this precedent Long figured he had a good legal argument to make when he started to challenge the grounds for his second conviction. After all, it wasn’t a case where exculpatory evidence was discovered decades after he went to prison. And it wasn’t a case where a witness had recanted years after testifying at trial. As the defense team saw it, the constitutional flaws in the trial were evident to all even before the trial had ended and should promptly have resulted in yet another reversal of Long’s conviction and sentence.

But that’s not what happened. When Long appealed up the ladder in Illinois the appellate judges there agreed that prosecutors were required to correct Irby’s false testimony but that this was a “harmless error” because of other evidence in the case (the other evidence being, remember, the shaky testimony of the only other eyewitness who never recanted). So Long’s conviction and sentence were ratified by the state. He then took his case to federal court and argued that Illinois’s rulings against him were so “contrary” to the Supreme Court’s precedents in Napue and Giglio that the feds had a duty to rescue him from the result of the second trial.

Which brings us to to the 7th Circuit. In 2015, a three-judge panel of the court concluded unanimously that Long’s constitutional rights had been violated and that his conviction and sentence were to be overturned. But state attorneys challenged this result-- defending the work of the prosecutor in the case-- and convinced the federal appeals court to hear the case again *en banc, *as a whole. Last year, eight judges of the 7th Circuit heard the case and issued the 5-3 split we saw earlier this month.

For the five judges in the majority, it came down to this: Those old cases, the ones in which the justices declared that prosecutors had an affirmative obligation to tell jurors about lying witnesses, didn’t really mean what they said. If the false testimony wasn’t elicited by prosecutors, or if the truth wasn’t known to the defense during trial, or if the prosecutor asked jurors to rely on the false testimony, or if the jury never learned the truth then, yes, perhaps, the Illinois courts had gotten it wrong about Long’s case and he was entitled to relief.

But that’s not what happened here, the 7th Circuit’s majority ruled. Even if prosecutors remained silent during Long’s trial defense attorneys pointed out Irby’s perjurious testimony. And Long’s prosecutors didn’t exactly rely on Irby’s testimony so much as muddy its import during closing argument. Maybe the prosecutor’s failure or refusal to correct Irby’s testimony actually helped Long because it allowed his attorneys to be the ones to portray Irby as a perjurer, the majority argued, glossing over the likelihood that the perjury would have been more credible if admitted by the prosecutor.

Long’s attorneys wouldn’t tell me if they plan to ask the Supreme Court to hear the case. But it seems an obvious avenue of appeal, giving the justices an opportunity to reaffirm the principle they announced in 1959 and in 1972, that the government has a constitutional and ethical obligation to ensure that it speaks out against perjury when it unfolds in the middle of a trial in front of the jury.